Is it futile to try to get non-resident fathers to maintain their children?

Tanya Evans | 20 October 2006

Executive Summary

Current family structures, including cohabitation, transient relationships and births out of wedlock, are not new.

Ever since the creation of the Poor Law in the late-sixteenth century, welfare authorities have had problems obtaining maintenance from absent fathers for the support of their children.

Experience has shown that this was usually because of their incapacity to pay, and punitive approaches will not make fathers pay who cannot do so.

The Beveridge Report, and the post-1945 welfare state, largely ignored the needs of unmarried and lone mothers and their children , whose needs were met instead by voluntary organisations.

Part of the problem of UK social policy is the unresolved tension of defining women as mothers or as workers.

Short-term political goals and Treasury priorities have meant that lone mothers continue to be short-changed by the government. A one-parent family allowance, as recommended by the Finer Committee of 1974, would have saved successive governments more money over the long term than has been spent since the creation of the Child Support Agency.

Introduction

Many people think that unmarried mothers are a recent phenomenon. However, the structures of family life widely believed to be new since the 1960s - cohabitation, many births outside marriage and transient family relationships - have a much longer history. Courtship and marriage have always been vulnerable to breakdown. Historically, men and women who produced illegitimate children usually hoped to marry but were frustrated by lack of work and savings to enable them to set up independent households. Some have argued that changes in sexual practices contributed to a rise in illegitimacy. But before the late-twentieth century, illegitimacy was usually the result of a failed courtship, for relationships begun with marriage in mind could be disrupted by war, abandonment, death or illness.

Obtaining maintenance from fathers

Throughout the early modern period English welfare authorities laid strong emphasis on the obligations of fathers to maintain their wives and children whether legitimate or not. Under the 'Old Poor Law' unmarried mothers were entitled to parish relief and local authorities, concerned with saving rate payers' money, could work hard to trace fathers evading their responsibilities and to compel them to support their children, as Thomas Nutt has shown (Policy Paper 47).

However, under the Poor Law Amendment Act of 1834 outdoor-relief was banned and unmarried mothers could only receive help from the parish if they entered the workhouse. The Act aimed to deter women from seeking relief by making it as miserable and stigmatising as possible, but also made it easier for fathers to escape their obligations. This legislative change was rooted in Malthusianism, the rise of Evangelicalism and growing fears about the costs that the parish was being asked to bear on behalf of paupers. Women found that their testimony regarding the fathers of their children was often treated with suspicion. Poor Law administrators came to believe that women gave birth to children out of wedlock for financial gain and increasingly discriminated against them. Women rather than men were blamed for sexual immorality. Actions for 'affiliation' were moved to the more public Quarter Sessions and women were required to present additional supporting evidence to prove who was the father of their child, usually letters, the testimony of witnesses, or tokens of affection proving that a relationship had taken place. An affiliation order could only be made after extensive enquiry proved that a mother was telling the truth. Putative fathers could no longer be imprisoned for failure to pay maintenance and payments were made by fathers direct to the parish rather than to the mother. It became much harder for parish officers to recover the cost of support from a father and the cost of caring for a child fell much more heavily upon mothers.

This system of obtaining maintenance remained into the twentieth century. A mother would obtain an affiliation order against the father of her child in the magistrate's court. There she had to prove that he was the father of her child. She could appeal in the Quarter Sessions if the magistrates' court procedure failed. In 1872 the maximum amount of an affiliation order was 5s a week, raised to 10s after 1918 and £1 in 1925, where it remained until 1952 despite the campaigning efforts of the National Council for the Unmarried Mother and her Child. By 1952 this was worth a paltry £19.26 in 2005 terms, when it was raised to £1 10s, and then to £2 10s in 1960. From 1872 the responsibility for collecting and enforcing maintenance and affiliation orders rested on the woman but even after collecting officers were appointed in 1914, many courts forced women to collect the money from the fathers themselves. Charges against a man could also not be brought until after the child's birth, so a woman remained without support at a crucial time before the birth, when she often could not work to support herself and her infant. Men frequently even travelled abroad to escape their maintenance obligations. The National Council worked tirelessly to implement international cooperation with regard to affiliation orders, especially during and after the Second World War, but no law was passed until 1972. The cost of affiliation proceedings remained high until the introduction of legal aid for such actions in 1961. In 1968 the statutory limit on awards was removed, but magistrates tended to set the limits low to ensure that men paid something, albeit an inadequate amount to maintain a family. Authority was given to the Supplementary Benefits Commission in 1968 to obtain maintenance from putative fathers for their illegitimate children as 'liable relatives'. Special affiliation proceedings on behalf of illegitimate children were abolished in the Family Law Reform Act of 1987, along with the distinction between legitimate and illegitimate children.

This complex system ensured that throughout the twentieth century only a tiny fraction of mothers of illegitimate children obtained regular maintenance from the fathers of their children.

Separation and divorce

Historically, women rarely separated from men because so few, whether rich or poor, could survive financially and the social stigma was extreme: divorce remained rare until the late-twentieth century. Between 1670 and 1857 there were only 325 divorces recorded in England, and all but four were initiated by men. Divorce was allowed in the civil courts from 1857 and numbers increased but the cost remained prohibitive for many until the introduction of legal aid for divorce in 1950 and no-fault divorce in 1969. To avoid these costs, couples often agreed to separate informally, though many men simply abandoned their partners.

Magisterial jurisdiction over divorce was created by the Matrimonial Causes Act 1878, guaranteeing married women a minimum degree of protection and maintenance from their husbands under a system similar to the Poor Law affiliation process. The association of family law with criminal law was unacceptable to many and the process of assessing, collecting and passing on maintenance payments was, as we have seen, highly problematic. Under the 1878 Act, if a man failed to pay maintenance within two weeks of an order being made he could be arrested or summonsed to appear before the court. If he still did not pay, the court could claim and sell his goods. In practice few courts could enforce this and most men were imprisoned for up to three months. Women continued to lose out because imprisonment cancelled out a man's debt. The Money Payments (Justices Procedure) Act 1935 established that there was no point in ordering a man to pay money he did not have: he could only be imprisoned if he had the means but refused to pay. In 1935 2,271 maintenance defaulters were jailed, but in 1936, as a result of the Act, only 1,828, emphasising how few men could afford to pay maintenance. Imprisonment for payment defaults increased again after the Second World War. Until the Legitimacy Act 1959 affiliation cases were heard in an open court. These legal processes were used primarily by the poorest sections of British society, who resented the publicity of their powerlessness.

The 1942 Beveridge Report did not deal explicitly with unmarried mothers. Beveridge had asked for evidence on the experience of unmarried mothers from national women's organisations. Unfortunately none responded to his request. He identified 'unmarried wives' and separated wives, whom he recommended that the state should support, but the Attlee government rejected this. Beveridge proposed a committee of experts to examine how to provide for them. Following the National Insurance Act 1946 many women's organisations argued that women should be insured independently of men, who should be legally obliged to maintain their wives and children. The post-war welfare state has always dealt with widows and divorced or separated women more sympathetically than unmarried mothers, though they shared many of the same characteristics of poverty. Widows remained eligible for pensions and supplementary assistance from the Poor Law and after 1948 from National Assistance, while other lone mothers remained dependent on National Assistance, later Supplementary Benefit, or charity if they received no maintenance.

Few women, married or not, could obtain adequate assistance from the fathers of their children because most men could not afford to support them, especially if they had a second family. Punishment did not work in women's or the state's interest. Men were imprisoned for debts they could not pay while women continued to receive no maintenance. Even if the maximum orders were collected by the courts, the amount was rarely sufficient to support a woman and her children without additional means. It usually fell to the state to provide this.

The Finer Report 1974

The Finer Report on One-Parent Families published in 1974 was an extraordinarily comprehensive and wide-ranging document, heavily influenced by the outstanding intellectual contributions of the chair Morris Finer (a well-respected, progressive barrister) and O.R. McGregor (Professor of Social Institutions at Bedford College). Richard Crossman, had intended the Committee's work as part of his retirement legacy. It outlined, for the first time, the needs and circumstances of lone parents in twentieth-century Britain. After five years of research and writing, and drawing on the expertise of authorities across Britain, it established that, without doubt, the circumstances of one-parent families were far worse than those of two-parent families. The Committee's primary aim was to decrease the numbers of lone parents on Supplementary Benefit but it recognised the difficulties for lone parents, especially lone mothers, of combining work with childcare. Without help, women rarely earned enough to support themselves as well as their children; and they found childcare a problem. The Committee recognised and supported the obligation on men to maintain their families but insisted that the difficulties of lone mothers would be better met if the state rather than fathers were expected to maintain them and their children.

The Report highlighted how areas of both private and public law served to complicate the lives of most lone parents. Two of those areas were private: divorce law; and the law dealing with relations between husbands and wives, and parents and children, within the magisterial system. The third area was public: the poor law and its successor, Supplementary Benefits law. Many parents did not receive adequate maintenance under the law of affiliation or of 'liable relatives', and magisterial jurisdiction was used almost exclusively by the poor to deal with the consequences of the breakdown of relationships. Even if maintenance was collected in full from an absent parent, many women were still dependent upon the Supplementary Benefits Commission. At the end of 1971 there were 238,000 fatherless families (including unmarried, separated, widowed and divorced women) in Britain, out of a total of 520,000 families receiving Supplementary Benefits, for 200,000 of whom it was their main source of income. Many women had to endure long and expensive journeys to the magistrates' courts each week or month to collect the money owed to them. This prevented many from working, and humiliated those who often made these journeys for no reward. If men did not pay maintenance it was futile to imprison them for non-payment, because this cancelled out their debt and the tax payer was left with the original bill for the woman's maintenance and for the gaol term of the defaulter.

The Finer Committee proposed that claimants should be spared going through the courts to receive their maintenance; and the Supplementary Benefits Commission should take over the duties of assessing and collecting maintenance. They also suggested one unified system of Family Courts. Because the state already paid for the consequences of the break-down of familial relationships, the Committee suggested that lone parents should be entitled to a single benefit. This was their most significant recommendation - for a 'Guaranteed Maintenance Allowance' (GMA) to be available for all lone-parents as an alternative to Supplementary Benefits. GMA would be administered and assessed by the Supplementary Benefits Commission, rather than the magisterial courts, and be collected from the liable relative. It would be non-contributory and include an allowance for the adult (reduced for working families) as well as the child.

Despite the efforts of a number of pressure groups, who came together to form the Finer Joint Action Committee after the publication of the Report, the Committee's proposals were rejected by the Labour government at a time of economic crisis, because of their cost implications. There was also resistance to the means-tested GMA, but the government acknowledged in private that something similar would be inevitable in the future to meet the special needs of one-parent families. However, although the Report was not immediately successful, it was to have a significant long-term impact on the British legal system and social policy. The proposals for Family Courts were finally realised in the passage of the Children Act 1989 and conciliation rather than adversarial relations between divorcing and separating couples were encouraged in the Family Law Act 1996. If the recommended GMA had been implemented, state money could have been better spent catering to the needs of lone parent families. The costs of a special one-parent benefit might have been considerable but would have compared favourably with the billions wasted on the failed implementation of the 1991 Child Support Act. The Labour government at the time predicted that the cost of a one-parent family benefit would be £190 million a year. The cost of reforming the flawed CSA alone has risen to £1 billion. The Finer Committee realised that, although obtaining maintenance from the fathers of children could be attempted, most mothers would still require state aid to keep them above the poverty line because many had difficulties combining work with childcare.

The Child Support Act 1991

The levels of maintenance recovered from men continued to be low in the 1970s and 1980s and by the late 1980s only one in three lone mothers received regular maintenance and almost 60 per cent were in receipt of state benefits. In 1981/2 state spending on income-related benefits for lone-parents was £1.4 billion; by 1988/9 it had increased to £3.2 billion. Until 1991 it was widely accepted that if a man went on to create a second family his primary responsibility was to this family and the state would look after the first.

The Child Support Act was designed to reverse this assumption. The Finer Committee had steered clear of recommending a system to pursue fathers to recompense the state for the maintenance of women and children, because it acknowledged the tension between the two systems of private law as administered by the magisterial system and public law administered by the state social-security system. An attempt to elide these two systems was to form the cornerstone of the 1991 Act. The administrative orders recommended by Finer were taken up, but the context of this reform was quite different from that of the 1974 Report. For, in the meantime the 1987 Family Law Reform Act had abolished the status of illegitimacy and allowed unmarried fathers to apply for parental rights, to encourage them to support their children. With rights came responsibilities. Maintenance and care became bound together in the rhetoric of family law and social policy in the early 1990s, motivated by the rising state costs of lone-parent families and the perceived increase in anti-social behaviour attributed to the lack of parenting by fathers. The government insisted that men prioritise their obligation to the state rather than to their children. The legislation implied that men should have only as many children as they could provide for . This, of course, proved to be impossible to enforce, as the Finer Committee had predicted. The formula established to calculate maintenance seemed to take no account of a man's ability to support two families. The Finer Committee had recognised how hard it was for a man to support two families on one income and this contention seemed to find wide support in the family-justice system. Work for women was increasingly seen as a viable alternative to dependency on benefits, but the state still failed to appreciate the low wages which most women earned and the difficulties of combining work with childcare. Maintenance was enforced but not guaranteed, so women transferred their dependency onto the fathers of their children.

The principles behind the 1991 Child Support Act, that all children deserved maintenance and that women had a right to support from the fathers of their children, were of course laudable. The problems that the Child Support Agency (CSA) continues to face - the difficulties in assessing the money owed and enforcing payment - are well-known and were not only predictable but predicted. Men were not accustomed to the effective enforcement of the obligation to maintain their children. The 1991 Act aimed to change attitudes and behaviour amongst fathers. This was an overwhelmingly ambitious task without an immediate historical precedent that was likely to fail, especially in the context of the poor management and administration of the CSA. Many problems were caused by the state's overriding priority to save money rather than to provide comprehensively for children in lone-parent families.

With time, some fathers became more adept at playing the new child-support system and hiding their resources from the state. Those who could afford it continued to resolve maintenance disputes using the court system, while poorer families found themselves at the mercy of the CSA. The fathers' organisations that emerged in response to the Act, including the National Association for Child Support Action (NACSA), pressed the government to refocus its attention onto lone mothers and encourage them to return to work. Until the tensions surrounding paid and unpaid work for mothers of young children are resolved, it seems unlikely that the state will be able to deal adequately with the difficulties of enforcing the responsibilities of fathers to their families. The 1991 Act was ultimately ill-constructed and implemented to take account of the complexities of familial life in late-twentieth century Britain. The latest Department of Work and Pensions (2006) figures show that only 179,940 absent parents are making regular maintenance payments towards the upkeep of their children, one in eight of the total. Recent history suggests that the state cannot shift the entire responsibility for the children of broken relationships onto fathers because most are incapable of fulfilling that responsibility, for financial or emotional reasons.

Conclusions

The Henshaw review of the CSA, recommending its abolition, has rightly emphasised the need to engender a culture of compliance amongst fathers towards maintaining their children and the need for tougher enforcement. Research has shown that fathers who jointly register the births of their children are more likely to continue to support them. However, in engendering this culture of personal responsibility it is important to realise the futility of punitive approaches. As history has shown, these do not work and usually result in the state spending more money for only limited return. While encouraging voluntary arrangements between couples regarding the maintenance of their children seems to foster conciliation rather than adversarial relations, it is vital to recognise that some women will continue to require state help, particularly when combining work with childcare.

It seems that yet again, a Committee formed by the government in consultation with major stakeholders and experts on lone parenthood in Britain has ignored the experts' major recommendations regarding the need for guaranteed maintenance for lone parents. The stakeholders' and experts' proposal for a system of guaranteed maintenance works successfully in Scandinavia, where the state pays maintenance to all families caring for children and shoulders the risk of collecting it from non-resident parents. This is very much like the system in operation in Britain under the old Poor Law before 1834, as has been recently demonstrated by Thomas Nutt. Every lone parent receives maintenance regardless of whether the non-resident parent pays. The recommendations of the voluntary organisations and experts consulted by Henshaw have been rejected because of their costs, the belief that couples will be given the incentive to separate for financial gain, and the potential for unfair treatment compared to other low income groups. These are much the same reasons for the rejection of the Finer Report. The question remains, why spend large sums of public money over the course of thirty years, consulting with the recognised experts on the subject, but ignore their recommendations?

Mavis Maclean, 'The Making of the Child Support Act of 1991: Policy Making at the Intersection of Law and Social Policy', Journal of Law and Society, Volume 21, Number 4, December 1994, pp. 505-519.

About the author

Tanya Evans is a Research Fellow at the Centre for Contemporary British History, Institute of Historical Research. She has published Unfortunate Objects: Lone Mothers in Eighteenth-Century London (Palgrave, 2005). Her current project is on 'Unmarried Motherhood in England and Wales, 1918-1995'. tanya.evans@sas.ac.uk.

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